Exhibit 10.87


 


DATE:      30
June 2004


 


 


INSIGNIA
SOLUTIONS PLC


 


INSIGNIA
SOLUTIONS INTERNATIONAL LIMITED


 


INSIGNIA
SOLUTIONS, INC


 


INSIGNIA
SOLUTIONS SARL


 


ESMERTEC
AG


 


 


TERMINATION
AND WAIVER AGREEMENT


 


 


Macfarlanes


10
Norwich Street


London


EC4A
1BD


 


WGD/573886


 
















 


DATE                                                               30 June 2004


 


PARTIES


 


1                                                                                          INSIGNIA SOLUTIONS PLC
whose registered office is at Insignia House, The Mercury Centre, Wycombe Lane,
Wooburn Green, High Wycombe, Bucks HP10 0HH (PLC)


 


2                                                                                          INSIGNIA SOLUTIONS INTERNATIONAL LIMITED whose registered office is at Insignia House, The Mercury Centre,
Wycombe Lane, Wooburn Green, High Wycombe, Bucks HP10 0HH (Limited)


 


3                                                                                          INSIGNIA SOLUTIONS, INC whose registered office is at 41300 Christy Street, Fremont CA94538
USA (Inc)


 


4                                                                                          INSIGNIA SOLUTIONS SARL whose registered office is at 24 Avenue du Centre, 78180 Montigny
le Bretonneux (SARL)


 


the
foregoing parties being referred to in this Agreement as the Insignia Parties; and


 


5                                                                                          ESMERTEC AG whose
registered office is at Lagerstrasse 14, CH-8600 Dubendorf, Switzerland (Esmertec)


 


RECITALS


 


A                                                                                      The parties are parties to an Asset Purchase Agreement dated 4
March 2003 (as amended, varied and supplemented) (the Main
Agreement) pursuant to which the Insignia Parties have sold and
Esmertec has purchased the Business, Assets and Deferred Assets (including
intellectual property rights) as therein defined, as the parties hereby
acknowledge.


 


B                                                                                        PLC and Esmertec are parties to a Master Distribution and Licence
Agreement and a Master Support and Maintenance Agreement (partially terminated
by a side letter from Esmertec to PLC dated 16 February 2004 (the Side Letter)) and an SSP Software Marketing
Agreement and Licence all dated 23 April 2003 (together, including the
Side Letter, referred to as the Ancillary  Agreements).


 


C                                                                                        Esmertec and PLC are parties to a Charge over Intellectual Property
dated 16 February 2004 (the Charge).


 


D                                                                                       The Insignia Parties (on the one hand) and Esmertec (on the other)
have agreed to terminate the foregoing agreements by mutual consent and to
release and waive all and any existing and future outstanding obligations,
claims and restrictions which may be owed by one to another under or in
connection with those agreements or any of them or the transactions to which
they relate, in each case on the terms set out in this Agreement, with the
intention of achieving a complete and irrevocable severance of any relationship
between them.


 
















 


AGREEMENT


 


1                                                                                          Final payment


 


1.1                                                                                 Esmertec agrees to pay and PLC agrees to accept the sum of
US$185,000 in full and final satisfaction of (i) the deferred consideration and
(ii) any other consideration as may be due and payable pursuant to the Main
Agreement, any balance being waived.


 


1.2                                                                                 The payment referred to in Clause 1.1 shall be paid without setoff
or deduction of any kind for value no later than the date seven days after the
date of this Agreement in cleared funds to such account as PLC shall nominate.
Without prejudice to any other remedy, if such payment is not paid by that
date, interest shall accrue and be payable on the unpaid sum at the rate of 10%
per annum from that date to the date of payment calculated and accruing on a
daily basis and on the basis of a 360 day year.


 


1.3                                                                                 For the avoidance of doubt, payment of the sum referred to in Clause
1.1 above (being on account of the deferred consideration under the Main
Agreement) is secured by the Charge. With effect from payment in accordance
with Clause 1.1, the assets comprised in the Charge shall be released and
discharged from all mortgages, charges and other security interests created
thereby or pursuant thereto and Esmertec shall be released and discharged from
its obligations and liabilities (whether present or future, actual or
contingent) thereunder. Further, Insignia Parties shall (at Esmertec's request
and cost) execute any documents or otherwise do anything which may reasonably
be required to dismiss or otherwise annul the Charge itself within seven (7)
days after receipt of such payment.


 


2                                                                                          Termination of obligations


 


With effect
from the date of this Agreement, and subject as provided in Clause 1 above, the
Main Agreement and the Ancillary Agreements are terminated by mutual consent
and none of them shall be of any further force or effect for any purpose and
the parties are hereby released and discharged from the further performance or
observance of any obligations, restrictions or duties imposed thereby,
including but not limited to any obligation to pay or to repay money or to do
or refrain from doing any other act, whether any such obligation, restriction
or duty has accrued due at the date of this Agreement or not.


 


3                                                                                          Release and Waiver


 


Subject as provided in Clause 1 above, the Insignia Parties for
themselves, their shareholders, directors, successors and assigns (on the one
hand) and Esmertec for itself, its shareholders, directors, successors and
assigns (on the other) hereby release and waive all and any rights and claims,
whether in contract, tort, trust or otherwise which they may have or to which
they may be entitled as against the other, whether accrued at the date of this
Agreement or which might arise or accrue hereafter, under or otherwise in
connection with the Main Agreement, the Ancillary Agreements or the
transactions effected by any such agreements, and each of them covenants not to
sue or to take any other action against the other in connection with any such
agreement or transaction.


 


4                                                                                          Comprehensive intent


 


The parties declare that their intention is that the releases and
waivers contained in and effected by this Agreement
should be comprehensive and not limited in any respect and that each of them
has taken such professional legal advice in connection with this Agreement as
it considers necessary.


 


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5                                                                                          Confidentiality


 


5.1                                                                                 Subject as provided in Clause 5.2, the parties shall keep the terms
of this Agreement and of the Main Agreement, the Ancillary Agreements and the
Charge and the subject matter thereof and the negotiations leading to their
execution confidential and shall make no public statement or disclosure to any
third party (excluding its professional advisers in connection with seeking
their professional advice) in connection therewith, without first obtaining the
written approval of the other parties.


 


5.2                                                                                 Clause 5.1 shall not prevent any party from making any disclosure
required by law or by any government, administrative or regulatory body of
competent jurisdiction provided that before making such disclosure the relevant
party shall make reasonable efforts to resist or limit the same and to seek
confidential status for such discourse, and shall in any event (unless
prohibited by law) notify the other parties of the obligation and extent of
such disclosure at the earliest reasonable opportunity.


 


6                                                                                          Law and Jurisdiction


 


This Agreement shall be governed by and construed in
accordance with English law and the parties irrevocably submit to the exclusive
jurisdiction of the English courts as regards any claim, dispute or matter
arising out of or in relation to this Agreement.


 


7                                                                                          General


 


This Agreement may be executed by facsimile and/or by
the parties on one or more counterparts (each in the same form) provided that
all the parties execute at least one counterpart. Such counterparts shall
together constitute a single instrument.


 


 


EXECUTED and delivered as a Deed by each of the parties on the date at the
top of page 1


 


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  DULY EXECUTED by

  	
  )

  	
   

  
	
  INSIGNIA SOLUTIONS PLC)

  	
   

  	
   

  
	
  acting
  by two directors or other duly

  	
  )

  	
   

  
	
  authorised
  representatives

  	
  )

  	
  /s/
  Mark E. McMillan

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Richard M. Noling

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DULY EXECUTED by

  	
  )

  	
   

  
	
  INSIGNIA SOLUTIONS

  	
  )

  	
   

  
	
  INTERNATIONAL LIMITED)

  	
   

  	
   

  
	
  acting
  by two directors or other duly

  	
  )

  	
   

  
	
  authorised
  representatives

  	
  )

  	
  /s/
  Mark E. McMillan

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Richard
  M. Noling

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DULY EXECUTED by

  	
  )

  	
   

  
	
  INSIGNIA SOLUTIONS, INC)

  	
   

  	
   

  
	
  acting
  by two directors or other duly

  	
  )

  	
   

  
	
  authorised
  representatives

  	
  )

  	
  /s/
  Mark E. McMillan

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Richard M. Noling

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DULY EXECUTED by

  	
  )

  	
   

  
	
  INSIGNIA SOLUTIONS SARL

  	
  )

  	
   

  
	
  acting
  by two directors or other duly

  	
  )

  	
   

  
	
  authorised
  representatives

  	
  )

  	
  /s/
  Mark E. McMillan

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Richard M. Noling

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DULY EXECUTED by

  	
  )

  	
   

  
	
  ESMERTEC AG

  	
  )

  	
   

  
	
  acting
  by two directors or other duly

  	
  )

  	
   

  
	
  authorised
  representatives

  	
  )

  	
  /s/
  Edwin Douglass

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Daniel Diez

  	
   

  



 


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